Kentucky Went Too Far With Election Site Limits

CINCINNATI (CN) – Kentucky’s ban on political speech within 300 feet of polling sites is unconstitutional, the 6th Circuit ruled, siding with a man whom the law keeps from posting signs for candidates on his own property. John Russell had sued Kentucky Secretary of State Alison Lundergan-Grimes and other officials over the removal of political signs from outside his business, Campbell County Auto Body Inc., during elections in 2012 and 2014. Russell’s shop sits across from a polling place in Northern Kentucky, but the two buildings are divided by US-27, a four-lane road. Though Lundergan-Grimes and the other defendants had tried to invoke sovereign immunity, U.S. District Judge William Bertelsman found the law unconstitutional and granted Russell a permanent injunction. After a hearing in March, a three-judge appellate panel affirmed Tuesday. The 18-page decision relies heavily on the 1992 Supreme Court case Burson v. Freeman, which upheld a 100-foot buffer zone near polling places. Though states have an interest in adopting appropriate measures to prevent “election fraud – or similar degradations of the integrity of the electoral process,” the panel said a 300-foot buffer zone is impermissibly overbroad. “Kentucky presented no persuasive argument as to why Burson‘s safe harbor is insufficient, and instead a 300-foot radius is required to prevent fraud and intimidation,” Judge Alice Batchelder wrote for the court. “Kentucky did not present any evidence – or even a non-evidentiary policy argument – to the district court justifying a no speech zone nine times larger than the one previously authorized by the Supreme Court, and offers no well-reasoned argument to our court, either.” Judges David McKeague and Richard Allen Griffin concurred. As to the immunity defense, the court cited an exception to the 11th Amendment argument found in the 1908 case Ex parte Young. The exception states that “a suit challenging the constitutionality of a state official’s action is not one against the State.” The panel concluded that all of the defendants – including Attorney General Jack Conway – are charged with enforcing electioneering laws and therefore allow Russell to bring his claims. “Given the Kentucky State Board of Election’s (KSBE) statutory mandate to administer [the statute], and its undisputed role in effectuating that mandate, Russell’s allegations reflect a significant possibility that KSBE’s actions to implement this statute would be against his interests vis-à-vis engaging in political speech during elections,” Batchelder wrote.